The high court’s hint on partisan gerrymandering

23 June 2018

Furthermore, Roberts specifically disavowed the Kagan opinion, including her suggestion that a broad First Amendment challenge might be the most effective and efficient statewide challenge to partisan gerrymandering. They'll be determined by a less flashy, but perhaps even more critical, issue.

The court said the Wisconsin Democratic voters who sued hadn't shown they have legal standing to challenge the entire statewide map. The defendants appealed the District Court decision and the case moved to the US Supreme Court. That case, she noted, doesn't have the same procedural issues as the Wisconsin and Maryland cases.

"The opinion of the court rests on the understanding that we lack jurisdiction to decide this case, much less to draw speculative and advisory conclusions regarding others", Roberts wrote for a unanimous court. Supreme Court still can't figure out what to do about extreme partisan gerrymandering, the justices' failure to act has already had a deep impact on laws and policies across America. "Justice Roberts and Justice Kagan both indicate they want some additional evidence in the record, but our lawyers are not going to have any difficulty in introducing that evidence", Whitford says.

While the court routinely polices the drawing of electoral maps to combat racial gerrymandering, it has never found that partisan eforts went too far. "Or from insisting, when they do, that partisan officials stop degrading the nation's democracy". Instead, Chief Justice John Roberts sent the question back to the lower courts to allow for further consideration. Most election law experts seemed to think that the best vehicle for a decision in the next year or two would be a case from North Carolina now sitting on the court's docket, which the justices could hear as early as next term. "Today is a win for the rule of law in Wisconsin, and a testament to the talented attorneys at the Wisconsin Department of Justice", Schimel said. The court ruled that with the midterm USA elections looming in November, there would not be enough time to draw new maps and the plaintiffs could not show they would be irreparably harmed if the existing maps were used. The court determined "no such standard [for ruling gerrymandering unconstitutional] has emerged in this case", though they left open the possibility that the court could rule on partisan gerrymandering in the future.

Whitford - questioned whether the state's legislative districts were unconstitutionally gerrymandered when Republicans set them up in 2011. Republicans are the most frequent beneficiaries, largely because their success in the 2010 elections let them draw numerous current maps.

The four justices in the court's liberal bloc - Elena Kagan, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor - wrote a concurring opinion suggesting the plaintiffs in North Carolina had a strategy for a partisan gerrymandering claim the court would consider. "I continue to support a proposed bill that would place responsibility for drawing these maps in the hands of a non-partisan body such as Wisconsin's Legislative Reference Bureau".

Wisconsin Democrats sought to satisfy Kennedy with a test that relied on advanced statistical techniques. Democrats are more energized to vote and have held a consistent lead on the generic congressional ballot.

Representative Lewis and other Republican lawmakers have defended their congressional map by saying it splits fewer counties and avoids the severely contorted boundaries that were common under maps drawn since the 1990s by both Democrats and Republicans. The legislature then took just nine days to approve the law that lays out the Senate and Assembly maps.

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Republicans know this. They have all but admitted their advantage in Congress is based on a series of rigged maps. In 2012 the party won less than half the vote for the Assembly but still got more than 60 percent of the seats.

"Democrats have been using the maps as an excuse for their failure to connect with Wisconsin voters", Vos and Fitzgerald said.

The Supreme Court is still considering whether to take up a North Carolina case involving similar issues.

In a state where Democrats outnumber Republicans two to one, Maryland's mapmakers turned an eight-member House delegation that was split evenly in 2000 into one that now has seven Democrats and one Republican. But after losing 27 state chambers to Republicans over the past ten years, there are serious deficits for Democrats to overcome before heading into the next round of redistricting.